Robertson, et al. v. Chevron USA, Inc., et al

Filing 161

ORDER granting in part and denying in part Motions to Dismiss numbers 63 , 67 , 69 , 113 , 114 , 116 , 117 , 118 , 128 , 141 , 145 , 158 and 159 for reasons herein. Signed by Judge Susie Morgan on 2/21/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH ROBERTSON, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 15-874

CHEVRON USA, INC., ET AL.,
Defendant

SECTION: “E” (3)

ORDER AND REASONS
Before the Court are thirteen motions to dismiss filed by Defendants: (1)
ConocoPhillips Company (“Conoco”);1 (2) Shell Oil Company, Shell Offshore Inc., and
SWEPI LP (“Shell”);2 (3) Joseph Grefer and Camille Grefer (“Grefer Defendants”);3 (4)
Marathon Oil Company (“Marathon”);4 (5) BP Products North America, Inc., as successor
to Amoco Oil Company and BP Exploration & Oil Inc., and BP America Production
Company (“BP”);5 (6) Texaco Inc. (“Texaco”);6 (7) Chevron U.S.A. Inc. (“Chevron”);7 (8)
Anadarko US Offshore, LLC (“Anadarko”);8 (9) L.B. Foster Company (“L.B. Foster”);9
(10) OFS, Inc. (“OFS”);10 (11) Alpha Technical Services, Inc. (“Alpha Tech”);11 (12)
Riverstone Insurance (UK) Limited, as successor in interest to certain businesses of
Sphere Drake Insurance Limited (“Riverstone”);12 and (13) Certain Underwriters at
R. Doc. 63.
R. Doc. 67.
3 R. Doc. 69.
4 R. Doc. 113.
5 R. Doc. 114.
6 R. Doc. 116.
7 R. Doc. 117.
8 R. Doc. 118.
9 R. Doc. 128.
10 R. Doc. 141.
11 R. Doc. 145. Marathon, BP, Texaco, Chevron, L.B. Foster, OFS, and Alpha Tech adopt in extenso the
factual and legal allegations set forth in the Rule 12(b)(6) motion to dismiss and supporting memorandum
filed by Conoco. R. Docs. 63, 63-1.
12 R. Doc. 158. Plaintiffs allege Sphere Drake is the insurer of Pipe Contractor Defendant Oilfield Testers,
Inc. Riverstone adopts in extenso the factual and legal allegations set forth in the Rule 12(b)(6) motion to
dismiss and supporting memorandum filed by Anadarko. R. Docs. 118, 118-1.
1

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Lloyd’s, London (“Lloyd’s”).13 The motions are opposed.14 For the reasons that follow, the
motions are GRANTED IN PART and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs allege personal injuries and property damage from their alleged exposure
to naturally occurring radioactive material (“NORM”) from scale that was removed from
used oil field pipe as part of oil and gas operations that occurred in Harvey, Louisiana. 15
The plaintiffs include persons and representatives of persons who formerly and/or
presently live in, work in, or own property in Harvey, Louisiana.16 The defendants include
several oil companies (“Oil Company Defendants”), businesses that conducted pipecleaning operations for the oil companies (“Pipe Contractor Defendants”),17 and the
owners of the property on which the pipe-cleaning operations were conducted
(“Landowners”).18
Plaintiffs allege the Oil Companies delivered pipe that was covered in pipe scale to
the Pipe Contractors.19 The pipe scale, which collects on the inside of oil field drill pipes,
was contaminated with NORM.20 According to Plaintiffs, the pipe-cleaning operations
“created large quantities of radioactive dust, debris, and other residue” that “became

R. Doc. 159. Plaintiffs allege Lloyd’s is the insurer of Pipe Contractor Defendant Oilfield Testers, Inc.
Lloyd’s adopts in extenso the factual and legal allegations set forth in the Rule 12(b)(6) motion to dismiss
and supporting memorandum filed by Anadarko. R. Docs. 118, 118-1.
14 R. Doc. 106 (opposition to Conoco’s motion to dismiss); R. Doc. 107 (opposition to the Grefer Defendants’
motion to dismiss); R. Doc. 108 (opposition to Shell’s motion to dismiss); R. Doc. 132 (opposition to
Marathon’s motion to dismiss); R. Doc. 133 (opposition to BP’s motion to dismiss); R. Doc. 134 (opposition
to Texaco’s motion to dismiss); R. Doc. 135 (opposition to Chevron’s motion to dismiss); R. Doc. 139
(opposition to Anadarko’s motion to dismiss); R. Doc. 140 (opposition to L.B. Foster’s motion to dismiss).
15 R. Doc. 1-1 at ¶¶ 7, 14, 15. The Petition refers to “NORM” as “Technologically Enhanced Radioactive
Materials” (“TERM”).
16 Id. at ¶ 5.
17 Only two Pipe Contractor Defendants—OFS and Alpha Tech—have filed motions to dismiss. R. Docs. 141,
145. Riverstone and Lloyd’s, insurers of Pipe Contractor Defendant Oilfield Testers, Inc., also filed motions
to dismiss. R. Docs. 158, 159.
18 Id. at ¶¶ 7, 10, 15.
19 Id. at ¶ 12.
20 Id. at ¶¶ 13–14.
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airborne and either drifted off the Property or was wind-blown off the Property into the
Petitioners’ neighborhood and onto their properties.”21 Plaintiffs further allege some
residue settled onto the ground and was washed off by surface water runoff onto their
properties.22
Joseph Robertson and 157 other plaintiffs filed suit in Civil District Court for the
Parish of Orleans on February 5, 2015; 33 additional plaintiffs were named in a
supplemental petition.23 Defendant Joseph Grefer removed the action to this Court.24
Plaintiffs filed a motion for remand, which this Court granted on September 2,
2015, because the Court found Defendants failed to establish the individual amount in
controversy as required under 28 U.S.C. § 1332(a) and (d)(11)(B)(i).25 On January 22,
2016, the Fifth Circuit reversed this Court’s finding that no plaintiff had satisfied the
individual amount-in-controversy requirement, and remanded the case to this Court to
address Plaintiffs’ remaining jurisdictional arguments.26
On July 11, 2016, this Court denied Plaintiffs’ motion to remand, finding the
Defendants established minimal diversity for purposes of removal under CAFA and the
injuries alleged by Plaintiffs meet the aggregate amount in controversy requirement of $5
million under CAFA.27 The Court ordered Plaintiffs to identify any claims of individual
plaintiffs that should be remanded because the plaintiff failed to meet the individual
amount-in-controversy requirement. After allowing multiple extensions of time to submit

Id. at ¶ 15.
Id.
23 See R. Doc. 1-1.
24 R. Doc. 1.
25 R. Doc. 41.
26 See R. Doc. 52.
27 R. Doc. 53.
21

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sufficient evidence to establish the amount in controversy for any individual plaintiff, the
Court ordered no individual plaintiff’s claims were to be remanded to state court.28
Multiple Defendants then filed motions to dismiss under Rule 12(b)(6), arguing
Plaintiffs failed to state a plausible claim for various causes of action.
STANDARD OF LAW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief.29 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”30
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”31 However, the court does not accept as true legal conclusions or mere
conclusory statements,32 and “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.”33 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient.34

R. Doc. 100. Plaintiffs appealed this Court’s decision not to remand any individual plaintiff’s claim to
state court. The Fifth Circuit denied Plaintiffs’ motion to appeal. R. Doc. 109.
29 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
30 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
31 Id.
32 Id.
33 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
34 Iqbal, 556 U.S. at 663, 678 (citations omitted).
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In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”35 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.”36 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’”37
LAW AND ANALYSIS
The Defendants’ motions to dismiss are similar. Defendants seek the dismissal of
Plaintiffs’ claims with prejudice, arguing that Plaintiffs have failed to state claims for relief
that are plausible on their face. The Plaintiffs’ petition consists of numerous causes of
action. The Court considers the Defendants’ motions to dismiss by analyzing them in the
context of each cause of action, in turn.
I.

Depositor/Depositary Liability
Plaintiffs allege “the Pipe Contractors were the compensated depositaries and

agents of the Oil Companies.”38 “A deposit is a contract by which a person, the depositor,
delivers a movable thing to another person, the depositary, for safekeeping under the
obligation of returning it to the depositor upon demand.”39 “The depositor is bound to
reimburse the depositary for the reasonable expenses he has incurred for the safekeeping
of the thing deposited, to indemnify him for the losses the thing may have caused him,
and to pay him the agreed remuneration.”40

Twombly, 550 U.S. at 555.
Id. (quoting Fed. R. Civ. P. 8(a)(2)).
37 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (unpublished) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
38 Id. at ¶ 11.
39 LA. CIV. CODE art. 2926.
40 LA. CIV. CODE art. 2940.
35

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Defendants41 seek dismissal of Plaintiffs’ claims against the Oil Company
Defendants and Pipe Contractor Defendants under Louisiana Civil Code articles 2926 for
depositor/depositary liability.42
Plaintiffs have not alleged they are in a “depositor/depositary relationship with the
Defendants,” but instead argue “merely that the Pipe Contractors were in such a
relationship with the Oil Companies.”43 Even assuming a depositor/depositary
relationship existed between the Oil Company Defendants and the Pipe Contractor
Defendants, the Court finds the Oil Company Defendants, as alleged depositors, cannot
be held liable to third parties, such as the Plaintiffs.44 Any cause of action under the
Louisiana Civil Code articles on deposit belongs only to the depositary.45
IT IS ORDERED that Defendants’ motions to dismiss for failure to state a claim46
with respect to Plaintiffs’ claims for depositor/depositary liability are GRANTED.
Plaintiffs’ claims against Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, L.B.
Foster, OFS, Alpha Tech, Riverstone, and Lloyd’s are DISMISSED WITH
PREJUDICE.
II.

Continuous Tort
All Defendants47 seek to dismiss what they call Plaintiffs’ “continuous tort claims.”

Plaintiffs allege “[p]ortions of the contaminated pipe-cleaning residue are believed to
remain on the Property, where it continues to emit radiation to contaminate the ground
Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, L.B. Foster, OFS, Alpha Tech, and Riverstone.
R. Doc. 1-1 at 7, ¶¶ 10–12.
43 R. Doc. 106 at 4.
44 See LA. CIV. CODE arts. 2926, 2940.
45 See LA. CIV. CODE art. 2940.
46 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko), R. Doc. 128 (L.B. Foster), R. Doc. 141 (OFS), R. Doc.
145 (Alpha Tech), R. Doc. 158 (Riverstone), R. Doc. 159 (Lloyd’s).
47 Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, L.B. Foster, Grefer Defendants, OFS, Alpha
Tech, Riverstone and Lloyd’s.
41

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water and surface water that flows from the Property into the Petitioner’s neighborhood
and onto their properties.”48 Plaintiffs also allege “during all times relevant, radiation
escaped from the Property and has been [] discovered . . . , thus representing a continuous
tort.”49
In reality, the continuing tort doctrine is not a cause of action and no such cause of
action is asserted in the petition. Instead, the allegation relates to whether a continuing
tort suspends prescription with respect to certain causes of action. The Defendants have
not moved for dismissal based on prescription of any claims.
IT IS ORDERED that Defendants’ motions to dismiss for failure to state a claim50
with respect to Plaintiffs’ claims for continuous tort are DENIED. The Court will address
any issues of prescription and the continuing nature of torts if motions to dismiss based
on prescription are filed.
III.

Strict Liability Under Louisiana Civil Code Articles 2317 and 2317.1
The Oil Company Defendants51 and the Pipe Contractor Defendants52 seek to

dismiss Plaintiffs’ claims under Louisiana Civil Code articles 2317 and 2317.1 for strict
liability. Plaintiffs allege the Oil Company Defendants and Pipe Contractor Defendants
“are strictly liable for having garde of the contaminated pipe,” citing Louisiana Civil Code
articles 2317 and 2317.1.53

R. Doc. 1-1 at 8, ¶ 16.
Id.
50 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 69 (the Grefer Defendants), R. Doc. 118 (Anadarko), R. Doc. 128 (L.B.
Foster), R. Doc. 141 (OFS), R. Doc. 145 (Alpha Tech), R. Doc. 158 (Riverstone), R. Doc. 159 (Lloyd’s).
51 Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, and L.B. Foster.
52 R. Docs. 141, 145, 158.
53 R. Doc. 1-1 at ¶ 30(I); id. at ¶ 34(F).
48
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Prior to April 16, 1996, a plaintiff could impose strict liability on a custodian of a
thing under former Louisiana Civil Code article 2317 by establishing that (1) the person
was injured by a thing that was in the defendant’s care, custody, or control (garde); (2)
the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3)
the vice, ruin, or defect was the cause-in-fact of plaintiff’s damages.54
In 1996, Louisiana Civil Code article 2317.1 was added to require actual or
constructive knowledge of an unreasonable risk of harm to impose liability on a custodian
of a thing. Thus, after April 16, 1996, a plaintiff alleging strict liability based on the
defendant being the owner or custodian of a thing must prove: “(1) that the defendant
knew or should have known of the vice or defect; (2) that the damage could have been
prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise
such reasonable care.”55
Under either the pre-1996 or post-1996 causes of action for strict liability, a
defendant is liable for only things in its custody that have a “ruin, vice, or defect.”56 The
Oil Company Defendants and the Pipe Contractor Defendants argue the alleged scale is
not an imperfection inherent in the pipe itself sufficient to trigger strict liability.57 The
Defendants contend they cannot be held strictly liable because the contaminated pipe
scale on the oilfield pipes is merely a temporary condition and thus not a “defect”
sufficient to trigger strict liability.58
The Court disagrees. The radiation at issue in this case is absorbed into the pipe,
which Plaintiffs assert renders the pipe permanently defective. Thus, the radioactive

Lasyone v. Kan. City S. R.R., 786 So. 2d 682, 689 (La. 2001).
Gailey v. Barnett, 106 So. 3d 625, 628 (La. Ct. App. 4 Cir. 2012).
56 LA. CIV. CODE art. 2317.1.
57 See R. Doc. 63-1 at 8; R. Doc. 67-1 at 8; R. Doc 118-1 at 12–13.
58 See R. Doc. 63-1 at 8; R. Doc. 67-1 at 8; R. Doc 118-1 at 12–13.
54
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quality of the pipes containing NORM is not a mere temporary hazard that would
preclude the applicability of strict liability.
Defendants also argue Plaintiffs fail to allege the vice or defect in the pipes was the
cause-in-fact of their injuries. Instead, Defendants argue, Plaintiffs allege their injuries
were caused by pipe-cleaning operations conducted on the property.59 Defendants
contend Plaintiffs’ claim of strict liability should be dismissed because it was the pipecleaning operations—not any inherent defect in the pipes—that caused their injuries.60
Plaintiffs’ petition alleges the “scale on the pipe delivered to the Property was
contaminated with . . . TERM, and other hazardous . . . compounds that are known to pose
a serious health risk to humans.”61 Plaintiffs also allege the radioactive material “will
remain in the properties of the Petitioners, and continue[] to emit harmful radiation,
damaging Petitioner’s [sic] properties and causing . . . health problems.” 62 Plaintiffs
further allege “[a]s a result of their long-term exposures . . . the Petitioners are at risk for
contracting diseases, including cancers and forms of leukemia.”63 Finally, Plaintiffs allege
the “acts and/or omissions of the [Defendants] are a substantial contributing cause of the
Petitioners’ injuries and damages.”64 The Court finds this sufficient to allege the pipe scale
caused Plaintiffs’ physical injuries and property damage.
Defendants further argue Plaintiffs failed to allege that any Oil Company
Defendant had garde of the pipe when the alleged harm occurred. Conoco argues it

See R. Doc. 1-1 at ¶¶ 13–16, 18.
See R. Doc. 63-1 at 8; R. Doc 118-1 at 12–13.
61 R. Doc. 1-1 at ¶ 14.
62 Id. at ¶ 17.
63 Id. at ¶ 19.
64 Id. at ¶¶ 28, 32, 36.
59

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cannot be held strictly liable because “several entities, including the Pipe Contractors,
accepted the pipe and asserted custody and control (“garde”) over it.”65
In Ross v. La Coste de Monterville, the Louisiana Supreme Court, after a thorough
analysis of the origin of Louisiana’s law with respect to garde of a thing that causes harm,
held that for the purposes of strict liability, “an owner of a thing who transfers its
possession, but not its ownership to another, continues to have the garde of its structure
and is obliged to protect others from damage caused by structural defects arising before
the transfer.”66
In this case, Plaintiffs allege “the Oil Companies delivered to the Pipe Contractors
at the Property used oil field pipe that was to be cleaned and inspected” and “[a]t all
relevant times, the Oil Companies retained ownership of the pipe, and retained the right
to supervise and control the Pipe Contractors’ cleaning work.”67 Plaintiffs further allege
the “scale on the pipe delivered [to the Pipe Contractor Defendants] . . . was contaminated
with [TERM].”68 Because Plaintiffs allege the Oil Company Defendants “retained
ownership of the pipe” and the Pipe Contractor Defendants had care, custody, or control
of the pipes, the Court finds the Plaintiffs allege sufficient facts to establish the Oil
Company Defendants and Pipe Contractor Defendants had custody or control of the pipes
for the purposes of strict liability. Accordingly, Plaintiffs adequately state a claim for strict
liability under Louisiana Civil Code article 2317 as to claims arising before 1996.
With respect to Plaintiffs’ claims under articles 2317 and 2317.1 for claims arising
after 1996, Plaintiffs must prove “(1) that the defendant knew or should have known of

R. Doc. 63-1 at 9.
Ross v. La Coste de Monterville, 502 So. 2d 1026, 1032 (La. 1987).
67 R. Doc. 1-1 at ¶ 10.
68 Id. at ¶ 14.
65

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the vice or defect; (2) that the damage could have been prevented by the exercise of
reasonable care; and (3) that the defendant failed to exercise such reasonable care.”69
“[W]ith its adoption of [article] 2317.1 to require knowledge or constructive knowledge,
‘the Legislature effectively eliminated strict liability under Article 2317, turning it into a
negligence claim.’”70
Plaintiffs allege the Oil Company Defendants “knew or should have known” of the
fault of the Pipe Contractor Defendants, that the Pipe Contractor Defendants were
handling hazardous materials in a negligent manner, and that the Pipe Contractor
Defendants were performing work under contracts with the Oil Company Defendants,
which caused the Plaintiffs’ injuries.71 Plaintiffs further allege the Oil Company
Defendants “did nothing to either stop the negligent operations or make them safe.”72
Plaintiffs, however, fail to allege whether the damage could have been prevented by the
Oil Company Defendants’ exercise of reasonable care.
With respect to the Pipe Contractor Defendants, Plaintiffs do not allege facts with
respect to any of the three elements for liability under article 2317.1.
Plaintiffs must amend their complaint to sufficiently allege whether the damage
caused by the pipe cleaning operations could have been prevented by the Oil Company
Defendants’ exercise of reasonable care. As to the Pipe Contractor Defendants, Plaintiffs
must allege whether each Pipe Contractor Defendant knew or should have known of the
vice or defect, whether the damage could have been prevented by that Pipe Contractor

Gailey, 106 So. 3d at 628.
Burmaster v. Plaquemines Par. Gov’t, 982 So. 2d 795, 799 n.1 (La. 2008) (quoting Lasyone, 786 So. 2d
at 689 n.9).
71 R. Doc. 1-1 at ¶¶ 30(A)–(C).
72 Id. at ¶ 30(A).
69
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Defendant’s exercise of reasonable care, and whether that Pipe Contractor Defendant
failed to exercise such reasonable care.
IT IS ORDERED that Oil Company Defendants’ and Pipe Contractor Defendants’
motions to dismiss73 are DENIED with respect to Plaintiffs’ claims for strict liability
under Louisiana Civil Code article 2317 for claims arising before 1996.
IT IS FURTHER ORDERED that the Plaintiffs amend their complaint by
March 13, 2017 to properly allege a cause of action for strict liability under articles 2317
and 2317.1 for causes of actions arising after 1996.
IV.

Absolute Liability for Ultra-hazardous Activities Under Article 667
The Oil Company Defendants,74 Grefer Defendants, and the Pipe Contractor

Defendants75 seek to dismiss Plaintiffs’ claims under Louisiana Civil Code article 667.
Plaintiffs allege the Oil Company Defendants and Pipe Contractor Defendants “are strictly
liable for conducting operations on the Property that caused damages and injuries to
Petitioners [under Louisiana Civil Code article] 667”76 and the Grefer Defendants, as
landowners, “are strictly liable for conducting activities on the Property that caused and
is causing damage to the Petitions, who are their neighbors.”77
The pre-1996 version of Louisiana Civil Code article 667 provided: “Although a
proprietor may do with his estate what he pleases, still he can not make any work on it,
which may deprive his neighbor of the liberty of enjoying his own, or which may be the
cause of any damage to him.” Louisiana courts interpreted the pre-1996 article 667 to

R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster), R. Doc. 141 (OFS), R. Doc.
145 (Alpha Tech), R. Doc. 158 (Riverstone), R. Doc. 159 (Lloyd’s).
74 Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, L.B. Foster.
75 OFS, Alpha Tech, Riverstone, and Lloyd’s.
76 R. Doc. 1-1 at ¶¶ 30(J), 26(A).
77 Id. at ¶ 26(A).
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impose liability without fault—known as absolute liability—for damage caused by an
“ultra-hazardous” activity.78
In 1996, the legislature amended article 667 to require a showing of negligence,
unless the claim was caused by “pile driving” or “blasting with explosives.”79 The current
version of article 667 provides:
Although a proprietor may do with his estate whatever he pleases, still he
cannot make any work on it, which may deprive his neighbor of the liberty
of enjoying his own, or which may be the cause of any damage to him.
However, if the work he makes on his estate deprives his neighbor of
enjoyment or causes damage to him, he is answerable for damages only
upon a showing that he knew or, in the exercise of reasonable care, should
have known that his works would cause damage, that the damage could have
been prevented by the exercise of reasonable care, and that he failed to
exercise such reasonable care. Nothing in this Article shall preclude the
court from the application of the doctrine of res ipsa loquitur in an
appropriate case. Nonetheless, the proprietor is answerable for damages
without regard to his knowledge or his exercise of reasonable care, if the
damage is caused by an ultrahazardous activity. An ultrahazardous activity
as used in this Article is strictly limited to pile driving or blasting with
explosives.80
A. Plaintiffs’ Claims for Damages Stemming from Violations of Article 667 Before
1996
To establish liability for harm incurred as a result of violations of article 667 before
1996, a plaintiff must show the defendant is: “(1) a proprietor (2) who conducts “work” on
his property (3) that causes damage to his neighbor.” 81 The term “proprietor,” although
commonly interpreted to refer to landowners, “has been expansively interpreted by the
courts to apply not only to a landowner, but also to a person whose rights derive from the

Bartlett v. Browning-Ferris, Indus., Chem. Servs. Inc., 683 So. 2d 1319, 1321 (La. Ct. App. 1996).
Yokum v. 615 Bourbon St., L.L.C., 977 So. 2d 859, 874 (La. 2008).
80 LA. CIV. CODE art. 667.
81 Alford v. Anadarko E&P Onshore LLC, Nos. 13-5457, 13-5703, 2015 WL 471596, at *9 (E.D. La. Feb. 4,
2015).
78
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owner.”82 For the purposes of article 667, “work” includes “not only constructions but also
activities that may cause damage.”83
Anadarko argues Plaintiffs fail to allege that it or any other Oil Company Defendant
is a proprietor because there is no allegation that any Oil Company Defendant owned the
property or held any right derived from owners of the property.84 In response, Plaintiffs
argue the Oil Company Defendants were “proprietors” engaged in “work” on the property
because they “furnished the pipe contractors with defective oil pipes which caused
damage on the property.”85 The Court finds Plaintiffs have failed to allege the Oil
Company Defendants are “proprietors” for the purpose of liability under article 667,
because Plaintiffs have not alleged the Oil Company Defendants owned the property or
derived rights from the landowners.
Accordingly, the Oil Company Defendants’ motions to dismiss with respect to
absolute liability under article 667 for conduct that occurred before 1996 are granted.
With respect to the Grefer Defendants, however, Plaintiffs have alleged the Grefer
Defendants are landowners, and therefore proprietors.86 The Plaintiffs also have alleged
the Grefer Defendants conducted “work” on their property, by contracting with the Pipe
Contractors to conduct pipe-cleaning operations on their property.
To make a claim under article 667, Plaintiffs also must allege the Grefer
Defendants were engaged in ultra-hazardous activities. Louisiana courts have engaged in
a three-step inquiry to determine whether an activity is ultra-hazardous: “(1) the activity
must relate to land or some other immovable; (2) the activity itself must cause the injury,

Yokum, 977 So. 2d at 874 (quoting Inabnet v. Exxon Corp., 642 So. 2d 1243, 1251 (La. 1994)).
Id.
84 R. Doc. 118-1 at 16.
85 R. Doc. 106.
86 See Yokum, 977 So. 2d at 874.
82
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and the defendant must be engaged directly in the injury-producing activity; and (3) the
activity must not require substandard conduct to cause injury.”87 Plaintiffs are not
required to allege the Grefer Defendants negligently engaged in ultra-hazardous activities
for the purpose of pre-1996 liability under article 667.
In support of their motion to dismiss with respect to absolute liability under article
667, the Grefer Defendants and Pipe Contractor Defendants adopted the arguments of
Conoco.88 The Grefer Defendants and Pipe Contractor Defendants, by adopting Conoco’s
arguments, argue Plaintiffs’ allegations fall short of satisfying these three criteria because
Plaintiffs do not allege that the activity relates to land or another immovable because the
damage in this case is the removal of NORM from the pipes.89 The Grefer Defendants and
Pipe Contractor Defendants also argue Plaintiffs fail to allege they were directly involved
with the injury-producing activity—pipe cleaning.90 Finally, the Grefer Defendants and
Pipe Contractor Defendants contend Plaintiffs fail to allege facts to support the conclusion
that pipe-cleaning operations cannot be performed safely, arguing “if an activity can be
conducted without a high degree of risk by exercising due care, it is not ultra-hazardous.”91
With respect to the Grefer Defendants, the Court finds Plaintiffs do not allege the
Grefer Defendants directly engaged in the pipe-cleaning activities. The Plaintiffs allege
only that the Grefer Defendants leased their property to the Pipe Contractors to conduct
pipe-cleaning operations.92 Accordingly, the Grefer Defendants’ motion to dismiss with

Bartlett v. Browning-Ferris Indus., Chem. Servs., Inc., 683 So. 2d 1319, 1322 (La. Ct. App. 3 Cir. 1996),
writ denied sub nom. Bartlett v. Browning-Ferris Indus., Chem. Serv., Inc., 692 So. 2d 394 (La. 1997)
(quoting Triplette v. Exxon Corp., 554 So. 2d 1361, 1362 (La. Ct. App. 1 Cir. 1989)).
88 R. Doc. 69-1 at 11; R. Doc. 141; R. Doc. 145.
89 R. Doc. 63-1 at 11.
90 Id.
91 Id. at 12.
92 R. Doc. 1-1 at ¶ 8.
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respect to Plaintiffs’ claims for absolute liability under article 667 for conduct that
occurred before 1996 is granted.
With respect to the Pipe Contractor Defendants, the Plaintiffs allege “the pipe
cleaning operations [were] conducted on and within the Property”93 and the residue from
the pipe-cleaning operations “settled onto the ground and was washed off the Property by
surface water runoff onto the Petitioners’ properties, or was absorbed into the ground and
migrated off the Property onto Petitioners’ properties.”94 The Court finds these allegations
sufficient with respect to the pipe-cleaning operations relating to the land. Plaintiffs also
allege the Pipe Contractor Defendants conducted the oil field pipe equipment cleaning
operations,95 which is sufficient to allege the Pipe Contractor Defendants “directly
engaged” in the ultra-hazardous activities. With respect to the third criteria, however,
Plaintiffs fail to allege that the pipe-cleaning do not require substandard conduct to cause
injury. Plaintiffs must sufficiently allege facts to meet all three criteria to establish the
defendants engaged in ultra-hazardous activities.
Accordingly, the Plaintiffs must amend their complaint with respect to their claims
against the Pipe Contractor Defendants under article 667 for violations that occurred
before 1996 to allege that the pipe-cleaning operations do not require substandard
conduct to cause injury.
B. Plaintiffs’ Claims for Damages Stemming from Violations of Article 667 After
1996
Because Plaintiffs do not claim any of the defendants engaged in pile driving or
blasting with explosives, they do not have a claim against defendants for absolute liability

Id. ¶ 9.
Id. at ¶ 15.
95 Id. at ¶ 8.
93

94

16

under for damages incurred as a result of violations of article 667 after 1996. To the extent
Plaintiffs attempt to state a claim for absolute liability—liability without proof of
negligence or fault—under post-1996 article 667, Defendants’ motions to dismiss are
granted.
To recover for damages as a result of post-1996 conduct, Plaintiffs must allege
Defendants’ actions were negligent.96 To sustain a negligence claim under article 667 for
damages as a result of conduct after 1996, a plaintiff must show the defendant “knew or,
in the exercise of reasonable care, should have known that [the defendant’s] works would
cause damage, that the damage could have been prevented by the exercise of reasonable
care, and that [the defendant] failed to exercise such reasonable care.”97 The Court finds
the Plaintiffs have plausibly alleged the Oil Company Defendants, Grefer Defendants, and
Pipe Contractor Defendants negligently conducted activities, causing harm to Plaintiffs
and their properties. Accordingly, Plaintiffs’ claims under article 667 for damages as a
result of conduct after 1996 may proceed. Defendants’ motions to dismiss with respect to
liability under article 667 damages as a result of conduct after 1996 are denied.
V.

Res Ipsa Loquitur
All Defendants seek to dismiss Plaintiffs’ claims against them based on the doctrine

of res ipsa loquitur. Plaintiffs allege “[i]n addition to the allegations of negligence and
strict liability . . . . the Petitioners plead the doctrine of res ipsa loquitur.”98
The doctrine of res ipsa loquitur is a rule of circumstantial evidence that “allows a
court to infer negligence on the part of the defendant if the facts indicate the defendant’s

Yokum, 977 So. 2d at 874 (the 1996 amendments to article 667 “shift[ed] the absolute liability standard
to a negligence standard”).
97 LA. CIV. CODE art. 667.
98 R. Doc. 1-1 at ¶ 43.
96

17

negligence, more probably than not, caused the injury.”99 The doctrine applies “in cases
where the plaintiff uses circumstantial evidence alone to prove negligence by the
defendant.”100 The doctrine of res ipsa loquitur is to be used sparingly.101
Defendants argue to the extent the Plaintiffs assert a “claim” under the doctrine of
res ipsa loquitur, this claim should be dismissed because the doctrine is only a rule of
circumstantial evidence.102 The Court agrees. If the Plaintiffs pleaded a separate cause of
action under res ipsa loquitur such a claim would be dismissed, but the Court sees no
evidence of such a claim.
However, to the extent the Plaintiffs intend to use the doctrine of res ipsa loquitur
to support their negligence claims, a ruling at this stage is improper. The applicability of
the doctrine of res ipsa loquitur “is determined at the conclusion of trial—or at least
following the completion of discovery.”103 Accordingly, Defendants’ challenge to
Plaintiffs’ potential reliance upon the doctrine of res ipsa loquitur to support their
negligence and/or strict liability claims is premature at this stage of the proceedings.
IT IS ORDERED that Defendants’ motions to dismiss for failure to state a
claim104 based on the doctrine of res ipsa loquitur are DENIED.

Spott v. Otis Elevator Co., 601 So. 2d 1355, 1362 (La. 1992) (citing Cangelosi v. Our Lady of the Lake
Regional Med. Ctr., 564 So. 2d 654, 660 (La. 1989).
100 Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So. 2d 36, 41 (La. 2007). The doctrine
“merely assists the plaintiff in presenting a prima facia case of negligence when direct evidence is not
available.” Id. (quoting Cangelosi, 564 So. 2d at 665).
101 Spott, 601 So. 2d at 1362.
102 See R. Doc. 110 at 3–4.
103 Lucarelli ex rel. Taylor Estate v. D V A Renal Healthcare Inc., No. 08-0406, 2008 WL 5586615, at *6
(W.D. La. Oct. 24, 2008), report and recommendation adopted sub nom. Lucarelli ex rel. Taylor v. DVA
Renal Healthcare Inc., No. 08-0406, 2009 WL 276526 (W.D. La. Feb. 2, 2009) (citing King v. King, 235
La. 270, 277 (La. 1968)).
104 R. Doc. 63 (Conoco); R. Doc. 113 (Marathon); R. Doc. 114 (BP); R. Doc. 116 (Texaco); R. Doc. 117
(Chevron); R. Doc. 67 (Shell); R. Doc. 69 (Grefer Defendants); R. Doc. 128 (L.B. Foster); R. Doc. 141 (OFS);
R. Doc. 145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
99

18

VI.

Medical Monitoring

All Defendants105 seek to dismiss Plaintiffs’ claims against them for medical
monitoring. Plaintiffs’ petition alleges “they are entitled to receive future medical
expenses in the form of medical monitoring and screening.”106
The Louisiana Supreme Court held in Bourgeois v. A.P. Green Industries, Inc.
(“Bourgeois I”) that medical monitoring costs are compensable damages under Louisiana
Civil Code article 2315 if the plaintiff satisfies seven criteria.107 The seven criteria are:
1) A significant exposure to a proven hazardous substance;
2) As a proximate result of this exposure, plaintiff suffers a significantly increased risk
of contracting a serious latent disease;
3) Plaintiff’s risk of contracting a serious latent disease is greater than (a) the risk of
contracting the same disease had he or she not been exposed and (b) the chances
of members of the public at large of developing the disease;
4) A monitoring procedure exists that makes the early detection of the disease
possible;
5) The monitoring procedure has been prescribed by a qualified physician and is
reasonably necessary according to contemporary scientific principles;
6) The prescribed monitoring regime is different from that normally recommended in
the absence of exposure; and
7) There is some demonstrated clinical value in the early detection and diagnosis of
the disease.108
In response, the Louisiana Legislature amended Louisiana Civil Code article 2315 to
exclude future medical monitoring from the statute’s definition of compensable
damages.109 Revised article 2315(B) provides in relevant part “Damages do not include

Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, L.B. Foster, the Grefer Defendants, OFS,
Alpha Tech, Riverstone, and Lloyd’s.
106 R. Doc. 1-1 at ¶ 45.
107 716 So. 2d 355, 360 (La. 1998).
108 Id.
109 Acts 1999, No. 989.
105

19

costs for future medical treatment, services, surveillance, or procedures of any kind unless
such treatment, services, surveillance, or procedures are directly related to a manifest
physical or mental injury or disease.”110 “[T]he amendment effectively eliminated medical
monitoring as a compensable item of damage in the absence of a manifest physical or
mental injury or disease.”111 The amendment became effective on July 9, 1999.
Subsequently, the Louisiana Supreme Court, in Bourgeois II, held Act 989 does
not apply retroactively, and “plaintiffs have a vested right to assert their causes of action
for medical monitoring if those rights accrued prior to July 9, 1999.”112
Therefore “to state a claim for medical monitoring damages following the
amendment to article 2315 and the Louisiana Supreme Court’s decision in Bourgeois II,
a plaintiff must either (1) satisfy Louisiana Civil Code article 2315(B) which requires that
the monitoring relate to a manifest physical or mental injury or disease; or (2)
demonstrate that the seven factors forming the Bourgeois I test converged before July 9,
1999.”113
Which test applies depends on when the Plaintiffs’ causes of action accrued.
Bourgeois II defines a cause of action, for purposes of the peremptory exception, as “the
operative facts which give rise to the plaintiff’s right to judicially assert the action against
the defendant.”114 “The existence of the seven factors enunciated in Bourgeois I are the
operative facts which give rise to the plaintiff[s] right to judicially assert the action against

LA. CIV. CODE art. 2315(B).
Bonnette v. Conoco, Inc., 837 So. 2d 1219, 1230 n.6 (La. 2003).
112 Bourgeois v. A.P. Green Indus., Inc., 783 So. 2d 1251, 1260 (La. 2001).
113 Hill v. Exxon Mobil Corp., No. 11-2786, 2012 WL 359322, at *2 (E.D. La. Feb. 2, 2012); see also Crooks
v. Metro. Life Ins. Co., 785 So. 2d 810, 812 (La. 2001) (“[F]or the Bourgeois II holding to apply, the seven
factors forming the Bourgeois I cause of action for medical monitoring must have converged prior to July
9, 1999.”).
114 Hill, 2012 WL 359322, at *2 (quoting Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.
2d 1234, 1238 (La. 1993)).
110
111

20

the defendant.”115 Plaintiffs’ rights of action “accrue[], and they [have] a right to sue for
medical monitoring damages, upon the convergence of the seven [Bourgeois I] factors.”116
Plaintiffs’ petition does not allege whether each plaintiff’s cause of action for
medical monitoring damages accrued before or after Act 989’s effective date. Defendants
argue Plaintiffs’ petition fails to state a claim for medical monitoring damages under both
the current article 2315(B) test and the Bourgeois I test.117
To the extent some plaintiffs’ causes of action became manifest after July 9, 1999,
the petition does not allege which plaintiffs have a “manifest physical injury or mental
injury or disease” as required by article 2315(B). “The fact that [Plaintiffs] may have been
exposed to radiation is not, in and of itself, sufficient.”118
To the extent some plaintiffs’ causes of action became manifest before July 9, 1999
and are therefore subject to the Bourgeois I test, the petition does not sufficiently allege
the seven Bourgeois I criteria for each plaintiff. Plaintiffs’ general allegations reference
some of the Bourgeois I factors, but the petition fails to allege facts sufficient to state a
claim based on the required criteria for each plaintiff.119 For example, the petition does
not allege with respect to each plaintiff: whether the plaintiff suffered a significantly
increased risk of contracting a serious latent disease, whether such risk is greater than the
risk of contracting the same disease absent exposure, whether such risk of contracting a
latent disease is greater than the chances the members of the public of developing the
disease, what type of monitoring regimen is sought, or which qualified physicians
prescribed such monitoring. A petition that “offers labels and conclusions or formulaic

Id. (internal quotations omitted).
Id.
117 See R. Doc. 63-1 at 14; R Doc. 118-1 at 7–8.
118 Royal v. Exxon Mobil Corp., No. 12-00081, 2012 WL 280305, at * 1 (E.D. La. Feb. 6, 2012).
119 See id.
115

116

21

recitation of the elements of a cause of action will not do. Nor does a [petition] suffice if
it tenders naked assertions devoid of further factual enhancement.” 120
IT IS ORDERED that Plaintiffs have until March 13, 2017 to amend their
complaint to properly allege a cause of action for medical monitoring damages. Plaintiffs
must clearly allege when each plaintiff’s cause of action for medical monitoring accrued,
before or after July 9, 1999. If a plaintiff’s cause of action accrued before July 9, 1999, that
plaintiff must allege facts to address each of the Bourgeois I factors. If a plaintiff’s cause
of action accrued after July 9, 1999, that plaintiff must allege facts to support the
“treatment, services, surveillance, or procedures are directly related to a manifest physical
or mental injury or disease” as required by article 2315(B).121
VII.

Punitive Damages

Plaintiffs bring punitive damage claims against the all Defendants under former
article 2315.3 of the Louisiana Civil Code. The Oil Company Defendants,122 Grefer
Defendants, and the Pipe Contractor Defendants123 assert the Plaintiffs are barred from
seeking punitive damages under former Civil Code article 2315.3 because the Defendants’
actions did not occur within the article’s effective period.
Plaintiffs allege the actions of all Defendants occurred between 1958 and 1992.124
Plaintiffs allege “they are entitled to recover exemplary damages from the Defendants . . .

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Any now-deceased plaintiff cannot sustain a claim for medical monitoring damages. The Louisiana
Supreme Court has recognized “the personal nature of the medical monitoring cause of action” and held
that the cause of action abates “as a matter of law” “[u]pon the death of the original plaintiff.” Meral v.
Aucoin, 772 So. 2d 107, 107 (La. 2000) (per curiam) (citing LA. CIV. CODE art. 428).
122 Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, and L.B. Foster.
123 OFS, Alpha Tech, Riverstone, and Lloyd’s.
124 R. Doc. 1-1 at ¶ 8. Plaintiffs’ petition is conflicting in that paragraph 8 states “[t]he pipe cleaning business
operated on the Property continuously from 1958 through 1992,” but paragraph 50 provides “the activity of
cleaning contaminated pipe on the Property began in 1968 and ended in 1987.” The Plaintiffs must amend
their complaint to cure this deficiency.
120
121

22

because of the Defendants’ reckless and wanton disregard for public safety in the storage,
handling, transporting, and/or disposal of hazardous and/or toxic materials . . . during
the period of the effective dates of Civil Code article 2315.3.” 125 Plaintiffs also allege the
“acts and/or omissions of the [Defendants] are a substantial, contributing cause of
Petitioners’ injuries and damages.”126
Former article 2315.3 provides “[i]n addition to general and special damages,
exemplary damages may be awarded, if it is proved that plaintiff’s injuries were caused by
the defendant’s wanton or reckless disregard for public safety in the storage, handling, or
transportation of hazardous or toxic substances.”127 To obtain an award for punitive
damages, a plaintiff must satisfy four elements:
1) The defendant’s conduct must be wanton or reckless;
2) The defendant’s wanton or reckless conduct must create a danger to the public;
3) The defendant’s wanton or reckless conduct must occur in the storage, handling,
or transportation of hazardous or toxic substances; and
4) The plaintiff’s injuries must be caused by the defendant’s wanton or reckless
conduct consisting of all of these elements.128
Further, to state a claim for punitive damages, the Plaintiffs must plead facts to
establish that the actions occurred during the effective period of article 2315.3. The
provision was in effect between September 4, 1984 and April 16, 1996, and applies to
causes of action based on actions occurring during that time period.129 Thus, “in order to

Id. at ¶ 48.
Id. at ¶ 32.
127 See Corbello v. La. Prod., 850 So. 2d 686, 707 (La. 2003).
128 In re Harvey Term Litig., 872 So. 2d 584, 586 (La. Ct. App. 4 Cir. 4/21/04) (citing Billiot v. B.P. Oil Co.,
645 So. 2d 604, 617–18 (La. 1994), reversed on other grounds, Adams v. J.E. Merit Cons. Inc., 712 So. 2d
88 (La. 1998)).
129 See Corbello, 850 So. 2d at 707 n.9; Brownell Land. Co. v. Apache Corp., No. 05-322, 2005 WL 3543772,
at *6 (E.D. La. Oct. 13, 2005).
125

126

23

state a cause of action for exemplary damages, the plaintiff must plead facts which
establish the[] cause of action [arose] during the effective period of article 2315.3.”130
The Court finds the Plaintiffs allege plausible claims for punitive damages against
the Oil Company Defendants and the Pipe Contractor Defendants for causes of action
during the effective period of article 2315.3.
Plaintiffs, however, do not state a plausible claim for punitive damages against the
landowners, the Grefer Defendants. The Louisiana Fourth Circuit Court of Appeal has
considered whether the Grefer Defendants, as landowners, may be liable for punitive
damages for damage due to pipe-cleaning operations on their property. In In re Harvey
Term Litigation, the court found “the facts as alleged by the plaintiffs indicate a tangential
connection between the Grefers and the toxic NORM in question,” but this was
insufficient to state a claim against the landowners for punitive damages.131 “[M]ere
ownership alone is insufficient without demonstrating that the party had any dealings
with the substance itself.”132 “[A] defendant must be “engaged in” the storage, handling,
or transportation of hazardous substances.”133 In this case, Plaintiffs do not allege the
Grefer Defendants engaged in the storage, handling, or transportation of the allegedly
contaminated pipes. Accordingly, Plaintiffs fail to state a plausible claim for punitive
damages against the Grefer Defendants.

In re Harvey Term Litig., 872 So. 2d at 586.
In re Harvey Term Litig., 872 So. 2d 1214, 1218 (La. Ct. App. 4 Cir. 4/7/04), writ denied, 876 So. 2d 846
(La. 2004).
132 Id.
133 Id.
130
131

24

IT IS ORDERED that the Oil Company Defendants’ and the Pipe Contractor
Defendants’ motions to dismiss for failure to state a claim134 with respect to Plaintiffs’
punitive damage claims are DENIED.
IT IS FURTHER ORDERED that the Grefer Defendant’s motion to dismiss for
failure to state a claim135 with respect to Plaintiffs’ punitive damages claims is
GRANTED.136
VIII. Pre-Incorporation Liability
The Shell Defendants—Shell Offshore, Inc., and SWEPI LP—seek to dismiss
Plaintiffs’ claims against them to the extent they are based on liability for acts that
occurred before the entities were incorporated. Presumably, the Shell Defendants are
referring to Plaintiffs’ causes of action under Louisiana Civil Code articles 2315, 2317,
2317.1, 2315.3, and 667 against the Oil Company Defendants. The Shell Defendants argue
Plaintiffs fail to state a claim against Shell Offshore, Inc. and SWEPI LP to the extent
Plaintiffs claim they were exposed or their properties were contaminated during a time
period before the entities were formed.137

R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko), R. Doc. 128 (L.B. Foster), R. Doc. 141 (OFS), R. Doc.
145 (Alpha Tech), R. Doc. 158 (Riverstone), R. Doc. 159 (Lloyd’s).
135 R. Doc. 69 (Grefer Defendants).
136 The Court will not allow Plaintiffs to amend their complaint with respect to their claim for punitive
damages against the Grefer Defendants, as any amendment would be futile. Rule 15(a)(2) states that a court
“should freely give leave [to amend] when justice so requires.” The Court, however, has the discretion to
grant or deny a motion to amend and may consider a variety of factors including “(1) undue delay; (2) bad
faith; (3) dilatory motive on the part of the movant; (4) repeated failure to cure deficiencies by any
previously allowed amendment; (5) undue prejudice to the opposing party; and (6) futility of amendment.”
Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 268 (5th Cir. 2004). In determining whether
granting a motion to amend would be futile, the Fifth Circuit has stated: “While this court has not
specifically defined “futility” in this context, we join our sister circuits that have interpreted it to mean that
the amended complaint would fail to state a claim upon which relief could be granted.” Stripling v. Jordan
Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000).
137 R. Doc. 67-1 at 5. Defendants cite to Louisiana Revised Statutes sections 12:25 and 12:41 in support of
their proposition. R. Doc. 67-1 at 5. These statutes have been repealed. Effective January 1, 2015, the
Louisiana Legislature enacted the Louisiana Business Corporation Act, repealing the Louisiana Business
Corporation Law.
134

25

Plaintiffs have not alleged that the Shell Defendants are liable for acts occurring
before their dates of incorporation.
IT IS ORDERED that the Plaintiffs amend their complaint by March 13, 2017
to allege facts with respect to the Shell Defendants’ liability before their dates of
incorporation.
IX.

Unjust Enrichment
The Grefer Defendants seek to dismiss Plaintiffs claims against them for unjust

enrichment.138 Plaintiffs allege the Grefer Defendants obtained a compensatory damages
verdict in their favor against the defendants named in this suit for some of the same
radioactive contamination complained of in this matter.139 Plaintiffs further allege the
Grefer Defendants “have an obligation to clean up their property, and this obligation runs
in favor of the Petitioners. To the extent the Grefers have collected or may collect any part
of those damages by settlement or judgment, and do not use all of the proceeds to clean
up their property, then they will have been enriched without cause at the expense of the
Petitioners, and the Petitioners are entitled to share in those damages.”140
Louisiana Civil Code article 2298—Louisiana’s unjust enrichment article—
provides as follows:
A person who has been enriched without cause at the expense of another
person is bound to compensate that person. The term “without cause” is
used in this context to exclude cases in which the enrichment results from a
valid juridical act or the law. The remedy declared here is subsidiary and
shall not be available if the law provides another remedy for the
impoverishment or declares a contrary rule.141

R. Doc. 69-1 at 4.
R. Doc. 1-1 at ¶ 47.
140 Id.
141 LA. CIV. CODE art. 2298.
138
139

26

Louisiana courts have interpreted article 2298 to require the following elements to
establish an unjust enrichment claim: (1) an enrichment; (2) an impoverishment; (3) a
connection between the enrichment and the impoverishment; (4) an absence of
“justification” or “cause” for the enrichment or impoverishment; and (5) the absence of
any remedy at law.142
One of the required elements for a successful unjust enrichment claim is that
“‘there is no other remedy at law, i.e., the action is subsidiary or corrective in nature.’” 143
The Louisiana Supreme Court has stated that “[t]he unjust enrichment remedy is ‘only
applicable to fill a gap in the law where no express remedy is provided,’”144 and “[t]he
mere fact that a plaintiff does not successfully pursue another available remedy does not
give the plaintiff the right to recover under the theory of unjust enrichment.”145
The Plaintiffs have pleaded causes of action against the Grefer Defendants under
Louisiana Civil Code article 667, article 2315, and others.146 “[I]f a plaintiff pleads a legal
cause of action in his complaint, he may not also assert a claim for unjust enrichment,
because the latter is precluded by the availability of the former.”147 “[I]t is not the success
or failure of other causes of action, but rather the existence of other causes of action, that
determine whether unjust enrichment can be applied.”148 The Plaintiffs’ contention that
“whether there are other remedies at law for Plaintiffs is unable to be determined” 149 is

Baker v. Maclay Properties Co., 648 So. 2d 888, 897 (La. 1995) (citing Minyard v. Curtis Products, Inc.,
205 So. 2d 422, 432 (La. 1967)).
143 Drs. Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co., 376 F.3d 399, 407 (5th Cir. 2004)
(quoting Minyard, 205 So. 2d at 432).
144 Walters v. MedSouth Record Mgmt., LLC, 38 So. 3d 241, 242 (La. 2010) (per curiam) (quoting Mouton
v. State, 525 So. 2d 1136, 1142 (La. App. 1 Cir. 1988)).
145 Id.; see also JP Mack Indus. LLC v. Mosaic Fertilizer, LLC, 970 F. Supp. 2d 516, 521–22 (E.D. La. 2013).
146 R. Doc. 1-1 at ¶¶ 25–28.
147 Alford, 2014 WL 1612454, at *24 (citing Port of S. La. V. TriParish Indus., Inc., 927 F. Supp. 2d 332, 341
(E.D. La. 2013).
148 Garber v. Badon & Ranier, 981 So. 2d 92, 100 (La. Ct. App. 3 Cir. 4/2/08).
149 R. Doc. 107 at 5.
142

27

simply incorrect. Having pled a delictual action, the Plaintiffs are precluded from seeking
to recover under unjust enrichment.150
Accordingly, Plaintiffs’ claim against the Grefer Defendants for recovery under the
theory of unjust enrichment cannot stand under Louisiana law.
IT IS ORDERED that the Grefer Defendants’ motion to dismiss for failure to
state a claim151 with respect to Plaintiffs’ claim for unjust enrichment is GRANTED.152
X.

Property Damage or Diminution in Value
Anadarko, Riverstone, and Lloyd’s seek dismissal of Plaintiffs’ claims against them

for property damage or diminution of property value.153 Plaintiffs allege they “live in or
formerly lived in, and/or work or formerly worked in, and/or own or formally [sic] owned
real property in Harvey, Parish of Jefferson, State of Louisiana, in and around that area
of Harvey that is bounded by Peters Road, Sixteenth Street, Pailet Avenue, and Breaux
Avenue.”154 Plaintiffs allege “they are entitled to receive . . . compensation for . . . damage
to their property and the diminution in the value of their property”155 and the actions of
the Defendants “caused the Petitioners to have their . . . real property exposed to the
[hazardous materials].”156
Anadarko, Riverstone, and Lloyd’s argue Plaintiffs’ claims against them should be
dismissed because “a claim for damages to property belongs to the person who owns the
property at the time it was damaged” and the landowner at the time of the alleged damage

Walters, 30 So. 3d at 242.
R. Doc. 69.
152 The Court will not allow Plaintiffs to amend their complaint with respect to their claim for unjust
enrichment against the Grefer Defendants. See supra, note 136.
153 R. Docs. 118, 158.
154 R. Doc. 1-1 at ¶ 5(A).
155 Id. at ¶ 38; see also id. at ¶ 44.
156 Id. at ¶ 39.
150
151

28

has the real and actual interest to assert a claim.”157 Anadarko, Riverstone, and Lloyd’s
point the Court to the Louisiana Supreme Court’s ruling in Eagle Pipe, in which the
supreme court held “[i]n the absence of an assignment or subrogation of this personal
right [to sue the tortfeasor for damages], a subsequent purchaser of the property cannot
recover from a third party for property damage inflicted prior to the sale.”158
The Plaintiffs allege some of them own or owned property “in and around” the area
where the pipe-cleaning operations were conducted.159 Specifically, the Plaintiffs allege
the residue from the pipe-cleaning operations “became airborne and either drifted off the
Property, or was wind-blown off the Property into the Petitioners’ neighborhood and onto
their properties.”160 The Plaintiffs have not alleged which individual plaintiffs owned
property “in and around” the area the pipe-cleaning operations were conducted at the
time of the allegedly tortious conduct.
IT IS ORDERED that Plaintiffs amend their complaint by March 13, 2017 to
allege which individual plaintiffs owned property near the pipe-cleaning operations at the
time of the allegedly tortious conduct, where the property is located, the nature of the
damage, and when the damage occurred.
CONCLUSION
The Court will allow Plaintiffs to amend their complaint to cure deficiencies in
numerous areas. The Plaintiffs are cautioned that “conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a motion to

R. Doc. 118-1 at 22.
Eagle Pipe, 79 So. 3d at 279.
159 R. Doc. 1-1 at ¶ 5.
160 Id. at ¶ 15.
157

158

29

dismiss.”161 “[T]hreadbare recitals of elements of a cause of action, supported by mere
conclusory statements” or “naked assertion[s] devoid of further factual enhancement” are
not sufficient.162 A petition does not suffice “if it tenders naked assertions devoid of
further factual enhancement.”163 If Plaintiffs fail to sufficiently allege facts to plausibly
state causes of action for each individual plaintiff, the Court will grant Defendants’
motions to dismiss with respect to those plaintiffs for whom the allegations are deficient.
Finally, no further amendments to the Plaintiffs’ complaint will be permitted.
IT IS ORDERED that the Plaintiffs amend their complaint by March 13, 2017
to include allegations for each plaintiff in accordance with the following instructions:
1) Plaintiffs must state a time period during which they allege the pipe-cleaning
operations were conducted. This will cure the discrepancy between paragraphs
8 and 50 in the current petition.164
2) With respect to their claims against the Oil Company Defendants and Pipe
Contractor Defendants for strict liability under articles 2317 and 2317.1 for
claims arising after 1996, Plaintiffs must allege whether the damage caused by
the pipe cleaning operations could have been prevented by the Oil Company
Defendants’ exercise of reasonable care. As to the Pipe Contractor Defendants,
Plaintiffs must allege whether each Pipe Contractor Defendant knew or should
have known of the vice or defect, whether the damage could have been
prevented by the exercise of that Pipe Contractor Defendant’s reasonable care,
and whether that Pipe Contractor Defendant failed to exercise such reasonable
care.
3) With respect to their claims against the Pipe Contractor Defendants for
absolute liability under article 667 for conduct that occurred before 1996,
Plaintiffs must amend their complaint to make allegations with respect to
whether the pipe-cleaning operations require substandard conduct to cause
injury.

S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
162 Iqbal, 556 U.S. at 663, 678 (citations omitted).
163 Id.
164 Plaintiffs’ petition is conflicting in that paragraph 8 states “[t]he pipe cleaning business operated on the
Property continuously from 1958 through 1992,” but paragraph 50 provides “the activity of cleaning
contaminated pipe on the Property began in 1968 and ended in 1987.”
161

30

4) With respect to their claims for medical monitoring damages, Plaintiffs must
amend their complaint to allege which individual plaintiffs have a manifest
physical or mental injury or disease, and when it became manifest. If a
plaintiff’s physical or mental injury or disease accrued before July 9, 1999, that
plaintiff must allege the factors set forth in Bourgeois I.
5) With respect to their claims against the Shell Defendants, Plaintiffs must
amend their complaint to allege the basis for liability of Shell Offshore, Inc. or
SWEPI, LP for any damages before their respective dates of incorporation.
6) With respect to their property damage claims, Plaintiffs must amend their
complaint to allege which individual plaintiffs owned property near the pipecleaning operations at the time of the allegedly tortious conduct, where the
property is located, the nature of the damage, and when the damage occurred.
To the extent the amended complaint satisfies the deficiencies set forth above, the
motions to dismiss will be denied without prejudice to the defendants refiling their
motions with respect to those claims. To the extent the amended complaint does not
satisfy the deficiencies set forth above, the motions to dismiss will be granted.
IT IS FURTHER ORDERED that Defendants’ motions to dismiss165 for failure
to state a claim with respect to depositor/depositary liability are GRANTED and
Plaintiffs’ claims for depositor/depositary liability against Conoco, Marathon, BP, Texaco,
Chevron, Shell, Anadarko, L.B. Foster, OFS, Alpha Tech, Riverstone, and Lloyd’s are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ motions to dismiss for failure to
state a claim166 with respect to Plaintiffs’ claims based on the continuing tort doctrine are
DENIED.

R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 141 (OFS); R. Doc.
145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
166 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 69 (Grefer
Defendants); R. Doc. 141 (OFS); R. Doc. 145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
165

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IT IS FURTHER ORDERED that Oil Company Defendants’ and Pipe
Contractor Defendants’ motions to dismiss for failure to state a claim167 with respect to
Plaintiffs’ claims for strict liability under Louisiana Civil Code article 2317 for claims
arising before 1996 are DENIED.
IT IS FURTHER ORDERED that the Oil Company Defendants’168 motions to
dismiss for failure to state a claim with respect to Plaintiffs’ claims for liability under
Louisiana Civil Code article 667 for conduct occurring before 1996 are GRANTED.
Plaintiffs’ claims against Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko, and
L.B. Foster for liability under article 667 for pre-1996 conduct are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that the Grefer Defendants’ motion to dismiss for
failure to state a claim169 with respect to Plaintiffs’ claims for liability under Louisiana
Civil Code article 667 for conduct occurring before 1996 is GRANTED. Plaintiffs’ claims
against the Grefer Defendants for liability under article 667 for pre-1996 conduct are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motions to dismiss for failure to state a
claim170 filed by the Oil Company Defendants, Grefer Defendants, and the Pipe Contractor
Defendants with respect to Plaintiffs claims for absolute liability—liability without proof
of fault—under Louisiana Civil Code article 667 for conduct occurring after 1996 are

R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 141 (OFS); R. Doc.
145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
168 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster).
169 R. Doc. 69.
170 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 69 (Grefer
Defendants); R. Doc. 141 (OFS); R. Doc. 145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
167

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GRANTED. Plaintiffs’ claims for absolute liability under article 667 for conduct
occurring after 1996 against Conoco, Marathon, BP, Texaco, Chevron, Shell, Anadarko,
L.B. Foster, OFS, Alpha Tech, Riverstone, and Lloyd’s are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that motions to dismiss for failure to state a claim
filed by the Oil Company Defendants, Pipe Contractor Defendants, and Grefer Defendants
with respect to liability other than absolute liability under article 667 for damages as a
result of conduct occurring after 1996 are DENIED.
IT IS FURTHER ORDERED that motions to dismiss for failure to state a
claim171 filed by the Oil Company Defendants, Grefer Defendants, and the Pipe Contractor
Defendants with respect to the doctrine of res ipsa loquitur are DENIED.
IT IS FURTHER ORDERED that motions to dismiss172 filed by the Oil Company
Defendants and the Pipe Contractor Defendants for failure to state a claim with respect
to punitive damages are DENIED.
IT IS FURTHER ORDERED that motion to dismiss173 filed by the Grefer
Defendants for failure to state a claim with respect to punitive damages is GRANTED.
Plaintiffs’ claim for punitive damages against the Grefer Defendants is DISMISSED
WITH PREJUDICE.

R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 69 (Grefer
Defendants); R. Doc. 141 (OFS); R. Doc. 145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
172 R. Doc. 63 (Conoco), R. Doc. 113 (Marathon), R. Doc. 114 (BP), R. Doc. 116 (Texaco), R. Doc. 117
(Chevron), R. Doc. 67 (Shell), R. Doc. 118 (Anadarko); R. Doc. 128 (L.B. Foster); R. Doc. 141 (OFS); R. Doc.
145 (Alpha Tech); R. Doc. 158 (Riverstone); R. Doc. 159 (Lloyd’s).
173 R. Doc. 69.
171

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IT IS FURTHER ORDERED that the Grefer Defendants’ motion to dismiss for
failure to state a claim174 with respect to Plaintiffs’ claim for unjust enrichment is
GRANTED. Plaintiffs’ claim for unjust enrichment against the Grefer Defendants is
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 21st day of February, 2017.
_________ __ ________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

174

R. Doc. 69.

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